Fallout from the Lawrence v. Texas case

Citing the Lawrence v. Texas ruling in other courtcases
dealing with abortion, obscenity and polygamy

The significance of the Lawrence v. Texas decision:

On 2003-JUN-26, the U.S. Supreme Court ruling declared Texas' anti-sodomy law
unconstitutional. The state law had criminalized certain forms of sexual behavior
if performed by persons of the same gender, but did not criminalize the
same behaviors if performed by opposite-sex couples. But the ruling has a
far broader impact than merely overturning a law in Texas and similar
legislation in three contiguous states. As David Von Drehle, columnist for the Washington Post wrote:

"In an unexpectedly large step, the court said
traditional morality is no justification for making legal distinctions
among sexual behaviors of consenting adults. 'The fact that the governing
majority in a State has traditionally viewed a particular practice as
immoral is not a sufficient reason for upholding a law prohibiting the
practice,' Justice Anthony M. Kennedy wrote, quoting approvingly from his
colleague Justice John Paul Stevens."

That is, for consenting adults, the state or
federal government cannot pass a law criminalizing a behavior, simply because
the vast
majority of its citizens feel that it is immoral or sinful. 1 What some people consider to be immoral behavior can no longer be
criminalized if it is done in private; what some consider sinful behavior
can no longer carry a jail sentence.

This decision has very wide implications. It eventually could impact laws
which prohibit obscenity, prostitution, sado-masochism, indecent exposure,
teenagers obtaining abortions without parental notification or consent,
private drug usage, etc.
Even those few remaining state laws criminalizing adultery and pre-marital
sex might eventually be ruled unenforceable. The ruling could have ramifications
that are more widely spread through the culture than Roe v. Wade in
1973 2 which made early abortions available to women across the U.S.

Von Drehle notes that:

"And in at least one earlier
precedent, the realm of private, intimate life has been defined by the
Supreme Court to include 'marriage . . . family relationships [and] child
rearing'." 1 So, polygamy (either polyandry or polygyny) and same-sex marriages might become legalized.

Andrew Cohen, a CBS News legal analyst, said that the Supreme
Court:

"has
created a broad new legal rationale for future challenges by gay rights
activists...This is a major ruling that will change a lot of other laws
down the road."

He said that "gays and others" may be able to
use the ruling to challenge a wide range of laws on the basis of a right
to privacy. 3

Justice Antonin Scalia wrote the court's minority opinion, stating that the majority Justices pretended that they have left enough freedom:

"so
that we need not fear judicial imposition of homosexual marriage, as has
recently occurred in Canada...Do not believe it...[The majority opinion]
dismantles the structure of constitutional law that has permitted a distinction
to be made between heterosexual and homosexual unions, insofar as formal
recognition in marriage is concerned." 3

He said that laws
against bigamy, adultery, prostitution, bestiality and obscenity were now
susceptible to challenges. 5

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Possible uses of the Lawrence v. Texas decision:

David Von Drehle and Justice Antonin Scalia may well be accurate in their
predictions. Within about five weeks, cases involving abortion, obscenity
and polygyny either cited Lawrence v. Texas, or may have been influenced by
that ruling:

2003-JUL-10: Florida: Parental notification law overturned: The
legislature of the State of Florida passed a bill in 1999 that
would have required women under the age of 18 to notify their parents at
least 48 hours before they obtained an abortion. By a vote of 5 to 1, the Florida Supreme Court ruled that the law was unconstitutional
because it violates privacy rights guaranteed by the state constitution.
Senior Justice Leander Shaw wrote the majority ruling. He said that the
court had to base its decision on law rather than morality, and that the
privacy guarantee in the state's constitution is more extensive than the
one implied by the U.S. Constitution. The decision may have been
influenced by the U.S. Supreme Court decision in Lawrence v. Texas which severely
restricts states from passing legislation that implements moral codes. 6

2003-JUL-25: Ohio: Attempt to overturn obscenity law: H. Louis
Sirkin told Common Pleas Judge Richard A. Niehaus in Cincinnati, OH that
because of the Lawrence v. Texas decision by the U.S. Supreme Court:

"Practically all choices
made by consenting adults regarding their own sexual practices [are] a
matter of personal liberty and thus beyond the reach of state control."

He may have overstated the significance of the court's ruling; the
decision only refers to private sexual activity.

His client, Mr. Sean Jenkins, faces up to a year in prison on one count of
pandering obscenity at his Tip Top Magazines store. The lawyer
cited the legal concept of a "due process right to privacy." He
asserted that the Supreme Court's decision can be extended to include the
right to own and view obscene material at home. He argued that this would
logically include the right for others to sell such materials. 7

2003-AUG-2: Utah: Lawrence v. Texas cited in polygyny case: Rodney Holm, allegedly a polygamist, has been charged in St.
George, UT, with a number of crimes:

"Holm and his wives are members of
the Fundamentalist Church of Jesus Christ of Latter Day Saints, which
teaches polygamy as a central doctrine. Rodney Holm is a certified police
officer in Hildale, Utah, and Colorado City, Ariz., and has had 21
children with the three wives. Holm is charged with three counts of
unlawful sexual conduct with a 16- or 17-year old and one count of bigamy
involving his third wife, Ruth Stubbs." 8

Plural marriages involving one man and multiple women are fairly common in Utah and some adjacent states among
Mormons who belong to fundamentalist denominations which split away from the Church of Jesus Christ of Latter-day Saints. Tens of
thousands of Mormons still practice it. The
latter church once encouraged polygyny, but
announced that they were suspending it -- at least temporarily -- in the fall of 1890. This caused a number of major
schisms in the Mormon movement. Small groups, who felt that polygyny was a core
belief, left the church to continue the practice. Rodney Parker, who is
both the church's attorney and Holm's,
cited the Lawrence v. Texas ruling and asked that the charges against
his client be dismissed. Referring to the Supreme Court decision, he said: ''This has caused us to really rework our approach to
the case and what kind of evidence to present." In his motion
to dismiss the charges against his client, he wrote:
"The national social order in the United States does not compel
a conclusion that plural marriage is against public policy, especially
when considered in light of emerging lifestyles."
Assistant Attorney General Kristine Knowlton said that even if the
bigamy charge were dismissed because of the precedent established by the Texas case,
the other charge of sexual activity with a 16 or 17 year old could
continue. Both persons must be 18 years-of-age before they can marry without
parental consent in Utah. 9

2003-AUG-14: USA: Former officer suing Army: Lt. Col. Steve Loomis
was discharged from the Army because he apparently revealed that he has a
homosexual orientation. The Army invoked what has popularly been known as
the "Don't Ask, Don't Tell" (DADT) policy. Loomis has filed a $1.1
million lawsuit to recover his financial losses allegedly caused by the
discharge. He partially bases his lawsuit on the Lawrence v. Texas ruling.
Elaine Donnelly, president of the Center for Military Readiness,
suggests that the Bush Administration abandon the DADT policy, and enforce
the the total ban on gays and lesbians serving in the military, as
specified by a federal law passed in 1993. 10

2003-AUG-17: VA: Man accused of soliciting sex: Joel Singson
has been accused of soliciting sex in a public restroom in Virginia Beach,
VA. Detective Jarvis D. Lynch said that the area police actively pursue
men who frequent public places such as restrooms and parks. The officers
try to entrap them into soliciting sex. On MAR-20, Lunch pretended to look
for a sexual encounter in a department store restroom. According to
Singson, he told Lunch that we wanted to go to a private location outside
the store where the sexual act would take place. According to Lynch, they
agreed to do it in a toilet stall. Singson's lawyer, Jennifer Stanton,
said that if the sodomy law became unconstitutional as a result of the
Lawrence v. Texas decision, then the two sexual behavior that was
discussed was would have been legal, and the charge should be dismissed. 11